Law is fluid, and it changes. It can be bendy and a brick wall, all at the same time. Fun eh?
We always need to keep pushing the line. We do this when we take our cases in front of the tribunal.
Now parents can file a human rights complaint against their child’s school district on behalf of themselves. That wasn’t always the case. Some cases stated education was not a public service to parents, but only to their child. That has changed. Now parents can file a family status complaint. We push by bringing in new evidence and arguing in new ways with other new case law that create stepping stones.
I remember being in a Human Rights Law class, and the professor, who has a PhD in Law stated that people think they have these broad protections under the Charter, but it’s how your rights are DEFINED under the Charter. (Fabulous teacher, by the way. I loved all of her classes. She was phenomenal.)
Disabled students’ rights defined under the Charter by the Supreme Court of Canada are that being in a separate class in school is a reasonable accommodation and could be in the best interest of the child, regardless of what their parents think. I’ll talk more about this below.
The term “reasonable accommodations” is the ceiling and the walls in human rights.
Q: So, how do we know when our child is being offered reasonable accommodations?
A: It is when the barriers are removed of a disability-related need.
These cases are very context-specific. What that means is that no one’s case is going to be the exact same. Depending on the circumstances, your child’s experience may not fit into this. Cases can “differ” from case law. This is where you can make your arguments and make advances in The Code.
From what we know so far….how do we know if discrimination has occurred?
It is not about grades. Just because your child is not at a certain grade level does not mean they are automatically being discriminated against, and they haven’t had the barriers removed.
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X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
[142] Y has said that the learning support provided throughout X’s education has not been enough for X to “reach the same level as his peers or possibly excel”. The District’s obligation is reasonable not perfect accommodation. As I have said above, reasonable accommodation is not necessarily measured by whether a student is meeting or exceeding certain standardized learning goals but rather by whether barriers have been removed to provide meaningful access to education.
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It is not about whether outside recommendations have been accepted or not.
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Wells v. Manitoba (Human Rights Commission) et al., 2025 MBKB 86
[29] After considering all the evidence in relation to the Complaint, the Investigator concluded that the Board offered reasonable accommodation:
… the evidentiary record suggests that the school provided him with extensive supports, adaptations and programming based on the medical documentation it received, and its own observations of [her] son. The evidence shows that the school often already had supports in place that met or addressed some recommendations in new reports it received. While it may not have been able to implement every individual recommendation immediately or at all time, the school made a concerted effort to update and follow the son’s educational plan as per the extensive and changing recommendation made by numerous different clinicians and healthcare professionals through the son’s schooling. The school must be given some discretion with respect to the specific programming and supports it provided to its students based on medical documentation and ongoing assessments. As subject matter experts in delivering education, it appears that the school would be in the best position to determine how to provide academic accommodation to students in accordance with its assessments and available medical documentations.
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It is not about classroom placement. Segregated classrooms are considered a reasonable accommodation. They look at the “best interest of the child,” not what the court feels parents believe is the best interest.
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Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241
76 The Tribunal, therefore, balanced the various educational interests of Emily Eaton, taking into account her special needs, and concluded that the best possible placement was in the special class. It is important to note that the placement proposed was in a class located in a regular school where “the special class is integrated with the regular classes through morning circle and a buddy system which may include hand-over-hand art activities, music, reading, outings such as walks and recess, special activities like assemblies, mini olympics, interactive games, including rolling balls and playing catch” according to the testimony of the teacher of the class in which the Board proposed to place Emily. In addition, the Tribunal alluded to the requirement of ongoing assessment of Emily’s best interests so that any changes in her needs could be reflected in the placement. Finally, the Tribunal stated:
. . . our decision in favour of a special class placement does not relieve the school board and the parents of the obligation to collaborate creatively in a continuing effort to meet her present and future needs. Emily’s is so unusual a case that unusual responses may well be necessary for her. Such achievements can only be realized through cooperation, and most important, compromise.
It seems incongruous that a decision reached after such an approach could be considered a burden or a disadvantage imposed on a child.
79 In my view, the application of a test designed to secure what is in the best interests of the child will best achieve that objective if the test is unencumbered by a presumption. The operation of a presumption tends to render proceedings more technical and adversarial. Moreover, there is a risk that in some circumstances, the decision may be made by default rather than on the merits as to what is in the best interests of the child. I would also question the view that a presumption as to the best interests of a child is a constitutional imperative when the presumption can be automatically displaced by the decision of the child’s parents. Such a result runs counter to decisions of this Court that the parents’ view of their child’s best interests is not dispositive of the question. See E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315.
80 I conclude that the placement of Emily which was confirmed by the Tribunal did not constitute the imposition of a burden or disadvantage nor did it constitute the withholding of a benefit or advantage from the child. Neither the Tribunal’s order nor its reasoning can be construed as a violation of s. 15. The approach that the Tribunal took is one that is authorized by the general language of s. 8(3) of the Act. I have concluded that the approach conforms with s. 15(1) of the Charter. In the circumstances, it is unnecessary and undesirable to consider whether the general language of s. 8(3) or the Regulations would authorize some other approach which might violate s. 15(1).
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It is not about whether a child is experiencing a negative experience. The harm needs to be connected to a disability-related need.
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X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
[110] ….I accept that these incidents which X relayed to Y were upsetting to X. I appreciate that the interactions may have fed into X’s general feelings of unease at school, but the fact alone that these events may have happened is not enough, in itself, to establish that X’s disability factored into them. Not all negative experiences are discrimination. Even accepting that these incidents occurred, I did not hear evidence that could establish, on a balance of probabilities, that X’s disability was a factor in the conduct of the adults involved in these interactions.
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If you don’t agree, it doesn’t automatically mean it is discrimination. If parents don’t facilitate decisions that are “reasonable,” their human rights complaint can be dismissed.
“If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.”
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A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25
[248] The School District is not the only party with obligations in the accommodation process. Rather, the parents were obliged, as the Child’s representatives, to work towards facilitating an appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.
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Reasonable accommodations are about removing barriers. Providing your child “access to their education”. Parents want to pull their hair out, wondering what on earth that means. The thing is, it is so case-by-case specific that policies and human rights law can’t be too prescriptive. What meaningful consultation isn’t going to mean the same thing for each child? Maybe 30 minutes is enough for one kid, but three hours of meetings will be needed for someone else. I know there is a desire to have everything be so exact, but people aren’t like that. We can’t put our kids in boxes. What is reasonable is going to be completely dependent on the disability needs of your child.
We need to remember, like it or not, we are co-parenting with the government, and the school has the final say. They have to meaningfully consult with us, but even if we don’t agree, they make the final decisions. We can also file complaints if we don’t agree and appeal. We do have avenues. I know this is so frustrating. Especially when we feel we are dealing with education staff who know less about disability than we do.
We need to be able to communicate our child’s disability-related needs in terms of removing barriers. This is rights-based language. Just a little side note. Certainly, not all parents are like this, but there are some parents who are incredibly frustrated that the school isn’t making the features of their kids’ disability disappear. Schools can’t remove your child’s disability, but they can provide an environment that allows them to become the best version of themselves that they can be. There is a difference between the school’s legal responsibility for offering reasonable accommodations to remove barriers and performing an exorcism.
The law changes. As immovable as it seems, it is movable. It takes people bringing their cases to be interpreted in front of decision makers. However, when we decide if we want to take our cases to a hearing, we need to understand where the walls are so we know what we are going to need to argue and what kind of evidence they are seeking.
There is a lot of human rights case law across this country, and as much as I love to find it and read it, I cannot say that I have read everything. Please know that doing your own research and consulting with lawyers may be important for your own advocacy work.
Every child with a disability or perceived disability is protected under the Human Rights Code. Schools are legally entitled to provide children with an equitable education free of discrimination. Even if the school tells you, your child’s needs aren’t “needy enough” for support. Using the discrimination test can be a powerful way to advocate for your child. The other side of the coin is the reasonable justification test, and what the law considers what is “reasonable accommodations” being offered. The more knowledgeable we are and understanding of the Duty to Accommodate, the more we can feel confident in advocating for our kids.